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Citizenship and civil rights

Background

Section 1, arguably the most far-reaching section of the Fourteenth
Amendment, formally defines citizenship and protects a person's
civil and political
rights from being abridged or denied by any state. This
represented the Congress's
reversal of that portion of the Dred Scott decision which ruled
that black people were not and could
not become citizens of the United States or enjoy any of the
privileges and immunities of citizenship. The Civil Rights Act of 1866 had
already granted U.S. citizenship to all persons born in the United
States; the framers of the Fourteenth Amendment added this
principle into the Constitution to keep the Supreme Court from
ruling the Civil Rights Act of 1866 to be unconstitutional for want of congressional
authority to pass such a law or a future Congress from altering it
by a bare majority vote.

Section 1 also includes a formal definition of citizenship. During
the original debate over the amendment, Senator Jacob M.Howard of Michigan—the author of the
citizenship clause—described the clause as excluding not only
"Indians", but
also “persons born in the United States who are foreigners, aliens,
who belong to the families of ambassadors
or foreign ministers.” Howard also
stated the word "jurisdiction" meant the United States possessed a
“full and complete jurisdiction” over the person described in the
amendment. Such meaning precluded citizenship to any person who was
beholden, in even the slightest respect, to any sovereignty other
than a U.S. state or the federal government.

Finally, this section was in response to violence against African Americans within the southern
states. A Joint Committee on Reconstruction found that only a
Constitutional amendment could protect the rights and safety of
African Americans within those states.

Citizenship Clause

There are varying interpretations of the original intent of
Congress, based on statements made during the congressional debate
over the amendment. During the original debate over the amendment
Senator Jacob M.Howard of Michigan—the author of the
Citizenship Clause—described the clause as excluding American
Indians who maintain their tribal ties, and “persons born in the
United States who are foreigners, aliens, who belong to the
families of ambassadors or foreign ministers.” He was supported by
other senators, including Edgar Cowan,
Reverdy Johnson, and Senate Judiciary
Committee ChairmanLyman
Trumbull. Howard additionally stated the word jurisdiction
meant "the same jurisdiction in extent and quality as applies to
every citizen of the United States now" and that the United States
possessed a “full and complete jurisdiction” over the person
described in the amendment. Congressional Globe, 1st Session, 39th Congress,
pt. 4, p. 2893. Senate Judiciary
Committee ChairmanLyman
Trumbull, participating in the debate, stated the following:
"What do we [the committee reporting the clause] mean by 'subject
to the jurisdiction of the United States'? Not owing allegiance to
anybody else. That is what it means."Reverdy Johnson said in the same
debate: "If there are to be citizens of the United States entitled
everywhere to the character of citizens of the United States, there
should be some certain definition of what citizenship is, what has
created the character of citizen as between himself and the United
States, and the amendment says citizenship may depend upon birth,
and I know of no better way to give rise to citizenship than the
fact of birth within the territory of the United States, born of
parents who at the time were subject to the authority of the United
States." Other senators, including Senator John Conness, supported the amendment,
believing citizenship should include all children born in the
United States.

In Elk v.Wilkins, , the clause's meaning was
tested regarding whether it meant that anyone born in the United
States would be a citizen regardless of the parents' nationality.
In that case, the Supreme Court held that the children of Native Americans were
not citizens, despite the fact that they were born in the United
States.

The meaning was tested again in the case of United States v.Wong Kim Ark,
, regarding children of non-citizen Chinese immigrants born in
United States. The court ruled that the children were U.S.
citizens.

The distinction between "legal" and "illegal" immigrants was not
clear at the time of the decision of Wong Kim Ark. Neither
in that decision nor in any subsequent case has the Supreme Court
explicitly ruled on whether children born in the United States to
illegal immigrant parents are entitled to birthright citizenship
via the amendment, although that has generally been assumed to be
the case. In some cases, the Court has implicitly assumed, or
suggested in dicta, that such children
are entitled to birthright citizenship: these include INS
v.Rios-Pineda, and Plyler v.Doe, . Nevertheless, The Heritage Foundation has claimed
the Congress possesses the power to exclude such children from U.S.
citizenship by legislation.

The Constitution does not explicitly provide any procedure for loss
of United States citizenship. Loss of U.S. citizenship is possible
only under the following circumstances:

Fraud in the naturalization
process. Technically, this is not loss of citizenship but rather a
voiding of the purported naturalization and a declaration that the
immigrant never was a U.S. citizen.

Voluntary relinquishment of citizenship. This may be
accomplished either through renunciation procedures specially
established by the State Department or through other actions which demonstrate an
intent to give up U.S. citizenship.

For a long time, voluntary acquisition or exercise of a foreign
citizenship was considered sufficient cause for revocation of U.S.
citizenship. This concept was enshrined in a series of treaties
between the United States and other countries (the Bancroft Treaties). However, the Supreme
Court repudiated this concept in Afroyim v.Rusk, , as well as Vance v.Terrazas, , holding that the
Citizenship Clause of the Fourteenth Amendment barred the Congress
from revoking citizenship.

Due Process Clause

Beginning with Allgeyer
v.Louisiana
(1897), the Court interpreted the Due
Process Clause of the Fourteenth Amendment as providing
substantive protection to private contracts and thus prohibiting a
range of social and economic regulation, under what was referred to
as "freedom of contract". Thus,
the Court struck down a law decreeing maximum hours for workers in
a bakery in Lochner v.New York (1905) and
struck down a minimum wage law in Adkins v.Children's Hospital
(1923). However, the Court did uphold some economic regulation such
as state prohibition laws ( Mugler v.Kansas), laws declaring maximum hours for
mine workers (Holden v.Hardy (1898)), laws
declaring maximum hours for female workers (Muller v.Oregon (1908)), President Wilson's
intervention in a railroad strike (Wilson v.New
(1917)), as well as federal laws regulating narcotics (United
States v.Doremus (1919)).

The Court repudiated the "freedom of contract" line of cases in
West Coast Hotel
v.Parrish (1937). In the past
forty years it has recognized a number of "fundamental rights" of
individuals, such as privacy, which the
states can regulate only under narrowly defined circumstances. The
Court has also greatly expanded the reach of procedural due
process, requiring some sort of hearing before the government may
terminate civil service employees, expel a student from public
school, or cut off a welfare recipient's benefits.

The Court has ruled that in certain circumstances, the Due Process
Clause requires a judge to recuse himself on account of concern of
there being a conflict of
interest. For example, on June 8, 2009, in Caperton v.A.T.Massey Coal Co.(2009), the Court
ruled that a justice of the Supreme Court
of Appeals of West Virginia could not participate in a case involving a major
donor to his election to that court.

Equal Protection Clause

In the decades following the adoption of the Fourteenth Amendment,
the Supreme Court overturned laws barring blacks from juries (Strauder v.West Virginia (1880)) or
discriminating against Chinese-Americans in the regulation of
laundry businesses (Yick Wo
v.Hopkins
(1886)), as violations of the Equal Protection Clause. However, in
Plessy v.Ferguson (1896), the Supreme Court
held that the states could impose segregation so long as they provided
equivalent facilities—the genesis of the “separate but equal” doctrine. The Court
went even further in restricting the Equal Protection Clause in
Berea College v.Kentucky (1908),
holding that the states could force private actors to discriminate
by prohibiting an integrated college from admitting both black and
white students. By the early twentieth
century, the Equal Protection Clause had been eclipsed to the point
that Justice Oliver Wendell
Holmes, Jr. dismissed it as "the usual last resort of
constitutional arguments."

The Court held to the "separate but equal" doctrine for more than
fifty years, despite numerous cases in which the Court itself had
found that the segregated facilities provided by the states were
almost never equal, until Brown v.Board of Education (1954)
reached the Court. Brown met with a campaign of resistance
from white Southerners, and for decades the federal courts
attempted to enforce Brown's mandate against continual
attempts at circumvention. This resulted in the controversial
desegregation
busing decrees handed down by federal courts in many parts of
the nation (see Milliken
v.Bradley
(1974)). In Hernandez v.Texas, the Court held
that the Fourteenth Amendment protects those beyond the racial
classes of white or "Negro",and extends to
other racial and nationalistic groups, such as Mexican Americans in this case. In the half
century since Brown, the Court has extended the reach of
the Equal Protection Clause to other historically disadvantaged
groups, such as women and illegitimate children, although it has
applied a somewhat less stringent test than it has applied to
governmental discrimination on the basis of race (United States v.Virginia (1996); Levy v.Louisiana (1968)).

Though the framers of the Fourteenth Amendment did not believe it
would expand voting rights (leading to the passage of the Fifteenth
Amendment), the Supreme Court, since Wesberry v.Sanders (1964) and Reynolds v.Sims (1964), has interpreted the Equal
Protection Clause as requiring the states to apportion their
congressional districts and state legislative seats on a "one man, one vote" basis. The Court has
also struck down districting plans in which race was a major
consideration. In Shaw v.Reno (1993), the Court
prohibited a North Carolina plan aimed at creating majority-black
districts to balance historic underrepresentation in the state's
congressional delegations. In League of
United Latin American Citizens v.Perry
(2006), the Court ruled that Tom DeLay's
Texas redistricting plan intentionally diluted the votes of
Latinos and thus violated the Equal
Protection Clause.

Incorporation

In Barron v.Baltimore (1833), the
Supreme Court ruled that the Bill of Rights did not apply to the
states. While many states modeled their constitutions and laws
after the United States Constitution and federal laws, those
state
constitutions did not necessarily include provisions comparable
to the Bill of Rights. According to some commentators, the framers
and early supporters of the Fourteenth Amendment believed that it
would ensure that the states would be required to recognize the
individual rights the federal government was already required to
respect in the Bill of Rights and in other constitutional
provisions; all of these rights were likely understood to fall
within the "privileges or immunities" safeguarded by the amendment.
However, in the Slaughter-House Cases (1873), the
Supreme Court ruled that the amendment's Privileges or Immunities
Clause was limited to "privileges or immunities" granted to
citizens by the federal government in virtue of national
citizenship. The Court further held in the Civil Rights Cases (1883) that the
amendment was limited to "state action" and thus did not authorize
the Congress to outlaw racial discrimination
on the part of private individuals or organizations. Neither of
these decisions has been overturned and in fact have been
specifically reaffirmed several times.

Apportionment of Representatives

Section 2 of the Fourteenth Amendment establishes rules for the
apportioning of Representatives in
the Congress to states, essentially counting all residents for
apportionment and reducing apportionment if a state wrongfully
denies a person's right to vote. This section overrides the
provisions of
Article I, Section 2, Clause 3 of the Constitution, which
counted only three-fifths of
each state's slave population for purposes of allotting seats in
the House of Representatives and the Electoral College.

However, the provision calling for proportional decreases in
representation in the House of Representatives for states that
denied men 21 and older the right to vote was never enforced,
despite the fact that Southern states prevented many blacks from
voting before the passage of the Voting Rights Act in 1965. Some have
argued that Section 2 was implicitly repealed by the Fifteenth
Amendment, but it should be noted that the Supreme Court has
acknowledged the provisions of Section 2 in modern times. For
example, in Richardson
v.Ramirez,
the Court invoked Section 2 to justify the disenfranchisement of felons
by the states. In his dissent, Justice
Marshall explained the history of the Section 2 in relation to
the Post-Civil War Reconstruction era:

Participants in rebellion

Section 3 prevents the election or appointment to any federal or
State office of any person who had held any of certain offices and
then engaged in insurrection, rebellion or treason. However, a two-thirds vote by each House of
the Congress can override this limitation. In 1975, Robert E.Lee's
citizenship was restored by a joint congressional resolution,
retroactive to June 13, 1865. In 1978, two-thirds of both Houses of
Congress voted to posthumously remove the service ban from Jefferson Davis.

Validity of public debt

Section 4 confirmed the legitimacy of all United States public debt
legislated by the Congress. It also confirmed that neither the
United States nor any state would pay for the loss of slaves or
debts that had been incurred by the Confederacy. For example,
several English and French banks had lent money to the South during
the war. In Perry v.United States (1935), the Supreme
Court ruled that voiding a United States government bond
"went beyond the congressional power" on account of Section
4.

North Carolina (July 4, 1868, after having rejected it on December
14, 1866)

Louisiana (July 9, 1868, after having rejected it on February
6, 1867)

South Carolina (July 9, 1868, after having rejected it on December
20, 1866)

*Ohio passed a resolution that purported to
withdraw its ratification on January 15, 1868. The New Jersey
legislature also tried to rescind its ratification on February 20,
1868. The New Jersey governor had vetoed his state's withdrawal on
March 5, and the legislature overrode the veto on March 24.
Accordingly, on July 20, 1868, Secretary of StateWilliam H.Seward certified that the amendment had
become part of the Constitution if the rescissions were
ineffective. The Congress responded on the following day, declaring
that the amendment was part of the Constitution and ordering Seward
to promulgate the amendment.

Meanwhile, two additional states had ratified the amendment:

Alabama (July 13, 1868, the date the ratification was
"approved" by the governor)

Notes

Congressional Globe, 1st Session, 39th Congress,
pt. 4, p. 2893. Senate Judiciary
Committee ChairmanLyman Trumbull, participating in the debate,
stated the following: "What do we mean by 'subject to the
jurisdiction of the United States'? Not owing allegiance to anybody
else. That is what it means." In a similar vein, Reverdy Johnson said
in the same debate: "If there are to be citizens of the United
States entitled everywhere to the character of citizens of the
United States, there should be some certain definition of what
citizenship is, what has created the character of citizen as
between himself and the United States, and the amendment says
citizenship may depend upon birth, and I know of no better way to
give rise to citizenship than the fact of birth within the
territory of the United States, born of parents who at the time
were subject to the authority of the United States."

"[...] During that debate, Senator Edgar Cowan of Pennsylvania
objected to the citizenship clause of the 14th Amendment. 'Is the
child of the Chinese immigrant in California a citizen?' he asked
on the Senate floor. Senator John Conness of California said the
answer should be 'yes.' 'The children of all parentage whatever,
born in California, should be regarded and treated as citizens of
the United States, entitled to equal civil rights with other
citizens,' Mr. Conness said.",

In INS v. Rios-Pineda the Supreme Court referred to a
child born to deportable aliens as "a citizen of this country"

In Plyler v. Doe the court stated in
dicta that illegal immigrants are "within the
jurisdiction" of the states in which they reside and added in a
footnote that "no plausible distinction with respect to Fourteenth
Amendment 'jurisdiction' can be drawn between resident aliens whose
entry into the United States was lawful, and resident aliens whose
entry was unlawful."